TATA HOUSING DEVELOPMENT COMPANY LTD versus AALOK JAGGA AND OTHERS

[2019] 13 S.C.R. 577

TATA HOUSING DEVELOPMENT COMPANY LTD.

AALOK JAGGA AND OTHERS

(Civil Appeal Nos. 8398–8399 of 2019)

NOVEMBER 05, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Environment Laws:

Environment (Protection) Act, 1986 – Environment (Protection)Rules, 1996 – Housing project – Environment clearance – Housingproject coming up within the catchment area of Sukhna Lake andat short distance of 123 meters from Sukhna Wildlife Sanctuary –Challenge to – Held: Considering the distance of 123 meters fromthe Northern side and 183 meters from the Eastern side of the projectfrom wildlife sanctuary, such project cannot be allowed to come upin the area – Origination of the project indicates that State of Punjabfailed to act in furtherance of Doctrine of Public Trust as 95 MLAswere to be the recipients of the flats – Government permitted settingup of high–rise buildings up to 92 meters in the area which was notat all permissible – Moreso, in view of the Notification issued withrespect to the Sukhna wildlife sanctuary towards the side ofChandigarh Union Territory that no new commercial constructionof any kind shall be permitted within 0.5 km from the boundary ofprotected area or up to the boundary of the eco–sensitive zone andalso the fact that proposal made by the Punjab Government,confining the Buffer Zone to 100 meters, was rightly not acceptedby MoEF, the Government of Punjab as well as MoEF, cannot bethe final arbiter in the matter – Court has to perform its duty insuch scenario when the authorities have failed to protect thewildlife sanctuary eco–sensitive zone – Thus, the entire exercise ofobtaining clearance relating to the project quashed – Doctrine ofPublic Trust.

Environment: Environmental degradation and wildlifedegeneration – Need for protection and preservation of environment,safeguarding forest and wildlife – Development and urbanizationadversely affects our natural surroundings – Constitution ofIndia – Arts. 48(A), 51(A).

ADismissing the appeals, the Court

HELD: 1.1 Proposal, which was sent by the Government ofPunjab to the MoEF, to keep the Buffer Zone within 100 metersfrom Sukhna Wildlife Sanctuary, had not been accepted and thedirection was issued to resubmit the proposal for at least 1 kmBBuffer Zone has not been forwarded by State of Punjab. It wasincumbent upon the State of Punjab to send proposal to theMoEF, as required but it appears that it has not chosen to do sofor reason precious project concerning the MLAs is involved,and MoEF has not accepted its proposal for keeping Buffer Zoneto 100 meters. It has also been pointed out from the respondentCside that Naya Gaon forms part of the Greater Mohali Region inthe State of Punjab. In the statutory, Greater Mohali AreaDevelopment Authority, Regional Plan for Greater Mohali Regionin paragraph 14.3.1, it has been mentioned that no developmentis possible within 5 kms buffer distance from existing forest i.e.,DSukhna Wildlife Sanctuary. Thus, apart from Shivalik there areseveral pockets of forests distributed all over the Greater MohaliRegion. These have to be conserved, and the buffer zonerecommended should be protected against urban development.It is also clear that 2–2.75 km area has been ordered as eco–sensitive zone by the MoEF and the notification dated 18.1.2017Ehas been issued as to the adjacent area towards Chandigarh sideof the Sukhna Wildlife Sanctuary. [Para 21, 23, 24] [591-F-G;593-D-F]1.4 The most potent threat faced by the earth and humancivilization as whole which is confronted with, today, isFenvironmental degradation and wildlife degeneration. The needto protect flora and fauna which constitutes major portion ofour ecosystem is immediate. Development and urbanizationcoming at the cost of adversely affecting our natural surroundingswill in turn impact and be the cause of human devastation as wasGseen in the 2013 floods in Uttarakhand and in 2018 in Kerala.The climate change is impacting wildlife by disrupting the timingof natural events. With warmer temperatures, flowering plantsare blooming earlier in the year and migratory birds are returningfrom their wintering grounds earlier in the spring. Wildlifeconservation in India has long history, dating back to the colonialH

period when it was rather very restrictive to only targeted speciesand that too in defined geographical area. Then, the formationof the Wildlife Board at the national level and enactment ofWildlife Act in 1972 laid the foundation of present day “wildlifeconservation” era in post–independent India. Project Tiger inthe 1970s and the Project Elephant in 1992–both with flagshipspecies–attracted global attention. India then also became amember of all major international conservation treaties relatedto habitat, species and environment like Ramsar Convention,1971; Convention on International Trade in Endangered Speciesof Wild Fauna and Flora, 1973; Convention on Migratory Species,1979; Convention on Biological Diversity, 1992, among others.[Para 25] [593-G-H; 594-A-C]

1.5 The human as well as the wildlife are completelydependent upon environment for their survival. Human iscompletely dependent on the environment. Like the human, thewild life is also dependent on the environment for it’s survivaland also get effected by the environment. The relationshipbetween the human and animal can be understood by the food–chain and food–web. The wildlife is affected by several reasonssuch as population, deforestation, urbanization, high number ofindustries, chemical effluents, unplanned land–use policies, andreckless use of natural resources etc. [Para 26] [594-D-E]

1.6 The Directive Principles of State Policy provide thatprotection and improvement of environment, safeguarding forestand wildlife have been duly enjoined upon the Government.Those principles have found statutory expression in variousenactments i.e., Wildlife (Protection) Act, E.P. Act etc., whichhave been enforced by this Court in various decisions. Theinaction of State to constitutional and statutory duties cannot bepermitted. The Court has to issue appropriate directions to fulfilthe mandate. Article 51(A) provides fundamental duty to protectand preserve environment, wild life etc. [Para 27] [594-F-G]

1.7 In the facts and circumstances of the case, consideringthe distance of 123 meters from the Northern side and 183 metersfrom the Eastern side of the project in question from wildlife

Asanctuary, no such project can be allowed to come up in the areain question. The State of Punjab was required to act on the basisof Doctrine of Public Trust. It has failed to do so. The originationof the project itself indicates that State of Punjab was not actingin furtherance of Doctrine of Public Trust as 95 MLAs were tobe the recipients of the flats. It is clear why Government has notBbeen able to protect the eco–sensitive zone around Wildlifeand has permitted setting up of high–rise buildings up to 92meters in the area in question, which is not at all permissible.[Para 36] [604-C-E]

1.8 Such projects cannot be permitted to come up withinCsuch short distance from the wildlife sanctuary. Moreso, in viewof the Notification issued with respect to the Sukhna wildlifesanctuary towards the side of Chandigarh Union Territory andalso considering the fact that proposal made by the PunjabGovernment, confining the Buffer Zone to 100 meters, has rightly

Dnot been accepted by MoEF, as the Government of Punjab aswell as the MoEF, cannot be the final arbiter in the matter. TheCourt has to perform its duty in such scenario when theauthorities have failed to protect the wildlife sanctuary eco–sensitive zone. The entire exercise of obtaining clearance relatingto the project is quashed. Such scenario has emerged in theEmatter and that it involved large number of MLAs of PunjabLegislative Assembly. The entire exercise smacks of arbitrarinesson the part of Government including functionaries. [Para 37][604-E-G]

Goa Foundation v. Union of India(2011) 15 SCCF791 ;Animal and Environment Legal Defence Fund v.Union of India (1997) 3 SCC 549 : [1997] 2 SCR728 ;M.C. Mehta v. Kamal Nath and others(1997) 1SCC 388 : [1996] 10 Suppl. SCR 12 ;Vellore Citizens’Welfare Forum v. Union of India(1996) 5 SCC 647 :G[1996] 5 Suppl. SCR 241 ;Intellectuals Forum, Tirupathiv. State of A.P. and others(2006) 3 SCC 549 : [2006] 2SCR 419 ;M.C. Mehta v. Kamal Nath(2000) 6 SCC213 : [2000] 1 Suppl. SCR 389 ;M.C. Mehta (Badkhaland Surajkund Lakes matter) v. Union of India and

TATA HOUSING DEVELOPMENT COMPANY LTD. v. AALOKJAGGA AND OTHERS

others(1997) 3 SCC 715 : [1996] 7 Suppl. SCR 465 ;Indian Council for Enviro–Legal Action v. Union ofIndia and others(1996) 5 SCC 281 : [1996] 1 Suppl.SCR 507 – referred to.

Case Law Reference

(2011) 15 SCC 791[1997] 2 SCR 728[1996] 10 Suppl. SCR 12[1996] 5 Suppl. SCR 241[2006] 2 SCR 419[2000] 1 Suppl. SCR 389[1996] 7 Suppl. SCR 465[1996] 1 Suppl. SCR 507

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8398-8399 of 2019.

From the Judgment and Order 12.04.2017 of the High Court ofDelhi at New Delhi in W.P. (C) Nos. 2999 and 2924 of 2014.

Shyam Divan, Sr. Adv., Manu Nair, Neelabh Shreesh, Ms. SuvarnaKashyap, S. S. Shroff, Advs. for the Appellant.

A.N.S. Nadkarni, ASG, Ashok Kumar Srivastava, P. S. Patwalia,Puneet Bali, Sr. Advs., Pranay Ranjan, Vijay Prakash, Gurmeet SinghMakker, Vijay Prakash, Dhruv Sheoran, Gauravjit Singh Patwalia, AshokK. Mahajan, Ms. Natasha Dalmia, Karan Bharihoke, Raj Kamal, SiddhantSharma, Aditya Soni, Navkiran Bolay, Ms. Manmeet Arora, Ms. NidhiMohan Parashar, Ms. Samapika Biswal, Keshav, S. Shriram, SangramS. Saron, Ms. Vandana Rani, Rahul Gupta, Shubham Bhalla, Lalit Kumar,Advs. for the Respondents.

The Judgment of the Court was delivered by

ARUN MISHRA, J.

1. The appellant has questioned the judgment and order dated12.04.2017 passed by the High Court of Delhi, concerning the housingproject, on the ground that the area in question falls within the catchmentarea of Sukhna Lake and is 123 meters away from the boundary ofSukhna Wildlife Sanctuary. The Survey Map of India dated 21.09.2004,

Ademarcating the area of Sukhna Lake, is binding on the State of Punjab.The permission dated 05.07.2013, granted by the Nagar Panchayat, NayaGaon to Tata Housing Development Company Ltd. (Tata HDCL), isinvalid. The environment clearance dated 17.09.2013, granted by StateLevel Environment Impact Assessment Authority (SEIAA) fordevelopment of the project is not in conformity with the NotificationBdated 14.09.2006 of Ministry of Environment and Forest (MoEF), hasalso been set aside. It has also been ordered that if the permission isgranted by the State of Punjab in favour of the appellant if it so desires,it may apply to Central Government for environmental clearance treatingproject category ‘A.’C2. The Tata HDCL proposed to develop project, namely,“CAMELOT” in the revenue estate of village-Kansal, Tehsil-Kharar,District-Mohali, State of Punjab. The total project area is 52.66 acres,out of which 41.54 acres is to be developed for group housing built-uparea of 4,63,144.54 sqm. The parking facility is to be provided for 3645DESS. The estimated population of the project area was about 9788. Theproposed maximum height of the building wasto be 92.65 meters.Environmental clearance was required in terms of the Notification dated14.09.2006 issued by MoEF, which mandates prior to environmentalclearance from the Central Government or by the SEIAA. TheNotification has statutory force having been issued under Section 3(1)Eand 3(2)(v) of the Environmental (Protection) Act, 1986 (“E.P. Act”)read with Rule 5(3)(d) of the Environment (Protection) Rules, 1996 (“E.P.Rules”). Tata HDCL applied for environmental clearance from SEIAA,Punjab. The application was forwarded to the State Expert AppraisalCommittee (SEAC). In the meeting dated 06.06.2009, the committeeFawarded “gold grading” to the proposed project and recommended toforward the project to SEIAA for grant of environmental clearancesubject to the conditions specified therein. The MoEF recommended forenvironmental clearance in its meeting held on 09-10.11.2010. However,MoEF had called report from Northern Regional Office, Chandigarhvide letter dated 14.10.2010 regarding the proposed project. team ofGofficers inspected the project site, and, in the report, the distance of thehousing-cum-retail project “CAMELOT” from Sukhna Wildlife Sanctuaryis found to be 123 meters on Northern side and 183 meters on the Easternside. Besides, the report stated that the project falls in the catchmentarea of Sukhna Lake as per the Survey of India Map.H3. On 12.01.2011, Tata HDCL addressed letter to MoEF stating

that the project site does not contribute to the catchment area of SukhnaLake as physically the project area does not obstruct the natural flow ofwater towards Sukhna Lake.

4. In the meanwhile, C.W.P. No.20425/2010 titled “Aalok Jaggavs. Union of India and others” was filed in the High Court of Punjab andHaryana at Chandigarh, challenging the project to be in violation of theprovisions of Punjab New Capital (Periphery) Control Act, 1952 as wellas the E.P. Act claiming that the project lies in the eco-sensitive andprotected area, apart from falling within the catchment area of SukhnaLake.

5. The SEIAA sought clarification from MoEF as to whether it iscompetent to consider the application since the Sukhna Wildlife Sanctuaryis located at distance of 123 meters from the project site as per thereport of Northern Regional Office of MoEF. The High Court vide orderdated 26.03.2012 directed the Tata HDCL to comply with therequirements of the E.P. Act and Wildlife (Protection) Act for obtaininggrant of necessary clearances/sanctions/permissions from the competentauthorities.

6. Sarin Memorial Legal Foundation filed Writ Petition (Civil)No.994/2013 in this Court on 09.11.2013, under Article 32 of theConstitution of India challenging the decision of SEIAA, Punjab dated06.09.2013.

7. Order dated 21.08.2013 was passed by the High Court of Punjaband Haryana in which it was ordered that the project of Tata HDCLwould not be affected by the orders passed on 14.03.2011 and 14.05.2012in CWP No.18253/2009. Sarin Memorial Legal Foundation alsoquestioned the said order in this Court. This Court vide order dated22.04.2014 disposed of W.P.(C) No.994/13 and Civil Appeal No.4848/2014 filed by Sarin Legal Memorial Foundation. The order passed bythe High Court of Punjab and Haryana on 26.03.2012 was set aside.The writ petition was restored; the matters were transferred for thedecision to the High Court of Delhi.8. Municipal Area of Naya Gaon was notified on 18.10.2006 asthe ‘Local Planning Area’ of Naya Gaon. ‘Existing Land Use Plan’ and‘Draft Master Plan’ for Nagar Panchayat Naya Gaon were prepared.Nagar Panchayat Naya Gaon granted permission to raise the constructionto Tata HDCL on 09.04.2012. The Tata HDCL claimed, because of thepermission granted, under Section 6(2) of the Periphery Control Act,

A1952, and the environmental clearance granted under the EP Act, thatthey were entitled to proceed with the construction of the project inquestion. However, the petitioners, as well as the ChandigarhAdministration, disputed the stand taken by the State of Punjab.

9. Union Territory of Chandigarh has taken the stand that thearea falls within the catchment area of Sukhna Lake as such noBconstruction can be raised as per the Survey of India Map. It was adjacentto the wildlife sanctuary, and the distance was 123 meters. There was aviolation of the Periphery Control Act, and also clearance was not grantedin terms of Notification dated 14.09.2006 of MoEF.

10. It is pointed out that under the order passed by this Court toCspecify the area as the eco-sensitive zone around wildlife sanctuary, theState of Punjab had forwarded proposal to the MoEF for permittingthe construction beyond 100 meters that has not been accepted by MoEF.It is also submitted that towards the other side of the Sukhna WildlifeSantuary Lake area of 2 km. to 2.75 km. has been declared as an eco-Dsensitive zone. The MoEF had asked the State of Punjab to send aproposal for keeping the eco-sensitive zone within 1 km. to which theState of Punjab has not responded for the reasons best known to it.

11. It is also the case set up that initially, the housing project wasproposed for the ‘Punjab MLA Society’ for construction of residentialhouses of MLAs of Punjab Legislature. Subsequently, the said land wasEsold to M/s. Hash Builders Private Limited with an understanding thateach member of Punjab MLA Society would be allotted one flat. Theimpugned environment clearance dated 17.09.2013 has also sufferedfrom legal malafides, and it amounts to colourable exercise of powersince about 95 MLAs of the State of Punjab are the beneficiaries of theFproposed project.

12. In W.P.(C) No.2999/2014, it was submitted that the proposedproject for extraneous considerations is illegal. The proposed project islocated about 1500 meters from Sukhna Lake and 123 meters from theWildlife Sanctuary. The project is zero kilometers from the periphery ofGChandigarh. The project would destroy the wildlife sanctuary and wouldcause serious threat to Sukhna Lake. The High Court had banned allconstruction activities in the catchment area of Sukhna Lake in C.W.P.No.7649/2003. The project would adversely affect the environment withinChandigarh and increase noise pollution by several manifolds, whichwould harm the wildlife present in the adjoining Sukhna Wildlife Sanctuary.H

Impact of high-rise building having 28-storeys on the edict and normsof the city of Chandigarh has not been properly considered.

13. The State of Punjab has supported the case set up by TataHDCL, the edict of Chandigarh is not applicable in the area in question.Survey of India Map regarding the catchment area of Sukhna Lake, isnot conclusive since the objections are yet to be heard. SEIAA rightlyconsidered the application since the nearest distance of Sukhna WildlifeSanctuary from the project boundary on the northern side is 123 meters.,as per the Office Memorandum dated 02.12.2009 of MoEF. Tata HDCLhas to obtain clearance from the Standing Committee of the NationalBoard for Wildlife before starting any work on the site.14. In the counter affidavit filed by the Union Territory ofChandigarh, it is submitted that the area in question falls in the catchmentarea of Sukhna Lake and the heritage zone of the Capitol Complex, theproject would have direct impact on the existence of Sukhna Lake andthe environs of Chandigarh City. The Northern side of the Chandigarh,which is also the catchment area of Sukhna Lake, is an ecologicallyfragile area and substantial part thereof comprises of forest area thathas been declared Wildlife Sanctuary. The Chandigarh Administrationis fully committed to saving the heritage of Chandigarh, its forest area,wildlife sanctuaries, and preserve Sukhna Lake. The Conservator ofForests of Chandigarh has written letter to the Chief Architect, UT ofChandigarh, for the inclusion of the area proposed as Wildlife Corridoralong with the approval accorded by the Planning Commission of Indiain the Master Plan of Chandigarh. It is also submitted that the project islocated within the eco-sensitive zone and 10 km. from Sukhna WildlifeSanctuary, thus the prior clearance from the Standing Committee ofNational Board of Wildlife before seeking environmental clearance wasrequired to be obtained. The High Court has passed the orders forprotection of Sukhna Lake and its catchment area that no housing,commercial, or industrial project can be allowed on the North of theCapitol Complex of Chandigarh. Thus, it is submitted that no constructionmay be permitted to the North of the Chandigarh. The environmentalclearance has been illegally granted. There was no jurisdiction to SEIAA,Punjab to grant environmental clearance as the project in question iscategory ‘A.’ The High Court vide order dated 14.05.2012 has alsonoted that the Chandigarh Administration had adopted the Survey ofIndia Map as map of the catchment area of Sukhna Lake. The orderwas passed to give wide publicity to the general public that no construction

Ais permitted in that area. In paragraph 60 of the impugned judgment, inrespect of Survey of India Map, following finding has been recorded:

“60. xxx xxxxxx

(i)The Survey of India map dated 21.09.2004 is the onlydocument available on record identifying and demarcating theBcatchment area of Sukhna Lake. Admittedly the said mapwas prepared under the directions of the High Court of Punjaband Haryana in CWP No.7649/2003 (Dr. B. Singh vs. Unionof India). It is also not in dispute that the demarcation ofboundaries of catchment area was made after carrying out asurvey by Technical Experts and in due consultation with theCState of Punjab, State of Haryana and U.T. Chandigarh.”

15. The High Court has also referred to the joint inspection reportmade on 10.01.2011 by team of the officer from different departmentalong with Tata HDCL. The observations of the inspecting team areextracted hereinunder:D

“1. The nearest distance from the boundary of the project sitewas measured by the staff members of Forest Department ofU.T. Administration Chandigarh using measuring tape at two points:i. The nearest distance of Sukhna Wildlife Sanctuary from theproject boundary on northern side is 123 meters.

ii. The distance of Sukhna Wildlife Sanctuary from the boundaryof project area on Eastern side is 185 meters.

It is clarified that part of the catchment area of Sukhna Lakehas been declared as Sukhna Wildlife Sanctuary under Section26-A of the Wildlife (Protection) Act, 1972 by ChandigarhFAdministration vide Notification No.694-HII(4)98/4519 dated 6thMarch 1998 (copy enclosed).

The Tata Housing Project falls in the jurisdiction of NagarPanchayat, Naya Gaon, District Mohali, State of Punjab, which isapproximately 1500 metres away from Sukhna Lake (aerialGdistance). Further, it also falls under the catchment area of SukhnaLake as per the Survey of India map.

2. It has been observed by the team that no construction activitieshave been started by the Project authorities at site. Only wirefencing has been done to demarcate the boundary of the acquiredland area. In addition to it, solar light posts have been raised atHdifferent spots of the boundary, and site office comprising three

rooms has been constructed. It is stated by the Project Proponentthat these offices were constructed by the Defence ServicesCooperative Housing Building Society Ltd., and the Tata HousingDevelopment Company has only renovated them for using as asite office. The photographs of different locations of the sites areattached to show that there is no construction activity at the siteso far.

It is also mentioned here that there are existing houses and otherconstructed buildings in Kansal area, which are part of Kansalvillage in Punjab and other spontaneous construction.

During the inspection, it has been informed that any notificationdeclaring eco-sensitive zones has not been issued by U.T.Chandigarh Administration and State Government of Punjab tilldate.

The report is submitted to the Ministry of Environment and Forestsfor kind information and further necessary action.”

The High Court has ultimately given the finding that the projectsite is found to be part of the area of Sukhna Lake. The permissiongranted by Nagar Panchayat on 05.07.2013 to Tata HDCL has been setaside. Verification was sought from the MoEF as Sukhna WildlifeSanctuary was located at distance of 123 meters away from theproposed project. SEAC, Punjab, considered the matter on 18.04.2013.Pursuant to that, Tata HDCL filed revised application on 08.05.2013 inForm I and Form IA. In Form I, the project was described as “GroupHousing (CAMELOT) Project” and it falls under Item 8(b) of theSchedule. The plot area was shown as 52.66 acres, and the net plot area(after the surrender of area for services) was shown as 46.10 acres.The built-up area was shown as 4,63,144.54 sq.m. Concerning theinformation as to whether the proposal involves approval/clearance underthe Wildlife Protection Act, 1972, in the form it was stated:

“Clearance required from Standing Committee of National WildlifeBoard, New Delhi being project within 10 km. from the boundariesof Sukhna Wildlife Sanctuary, as on date Eco-Sensitive Zone hasnot been declared around Sukhna Wildlife Sanctuary.”

16. With respect to wildlife sanctuary, the High Court has madethe following observations:

“183. It is relevant to note that the consideration by EAC of MoEF,Government of India, was on the basis of the Tata HDCL’s first

application dated 25.03.2009. In the light of the stand taken bySEIAA Punjab in its counter affidavit, it is clear that no EIA Reportwas prepared after the submission of the revised application dated08.05.2013 by Tata HDCL. In the revised application dated08.05.2013, it was for the first time admitted by Tata HDCL thatits proposed project is situated within the prohibited distance of 10km. from Sukhna Wildlife Sanctuary. It was also admitted thatthe ariel distance from the proposed project and Sukhna Lake is123 meters (N) and 185 meters (E).”

184. xxx xxxxxx

185. Significantly, this is case where the project in question issituated within 123 meters from Sukhna Wildlife Sanctuary asrecorded in the Site Inspection Report dated 10.01.2011 on thebasis of the inspection of the project site conducted by team ofofficers in the presence of the representatives of Tata HDCL incompliance with the direction of MoEF vide letter dated14.10.2010. Though Tata HDCL addressed letter dated12.01.2011 to MoEF explaining that the project area does notobstruct the natural flow of water towards Sukhna Lake, thefactum of location of Sukhna Wildlife Sanctuary within 123 meterson Northern side and 183 meters on the Eastern side of the projectwas not disputed. In the light of the said admitted fact, SEIAA,Punjab in its meeting dated 15.12.2011 decided to get clarificationfrom MoEF as to whether SEIAA, Punjab is competent to considerthe application and accordingly addressed letter to MoEF.”

17. Concerning the declaration of the Buffer Zone around WildlifeSanctuary, the following facts have been noted by the High Court:

“193. Regarding the representation of UT Chandigarh dated09.05.2013 under Section 3 of the Environment (Protection)Act, requesting to declare Buffer Zone up to 2 - 2.75 km. aroundall sanctuaries, including Sukhna Wildlife Sanctuary, it is submittedby the learned Senior Counsel that the State of Punjab by itsproposal dated 18.09.2013 thought it fit to confine the Buffer Zoneto 100 meters only. It is also pointed out by the learned SeniorCounsel that so far no notification has been issued by the CentralGovernment under Section 3 of the Environment Protection Act.Thus, it is sought to contend that there is no area earmarked as

eco sensitive zone around the Sukhna Wildlife Sanctuary nor aBuffer Zone has been declared as of today.

194. xxx xxxxxx

195. It is also pointed out by Sh. Gopal Subramaniam that in factState of Punjab, had sent proposal dated 18.09.2013 requestingthe Union of India/MoEF to confine the buffer zone to 100 mtrs.only in the context of Section 3 of Environment (Protection) Act,1986.”

18. The High Court has noted that after reserving the matter, ashort affidavit dated 09.03.2017 has been filed on behalf of the UnionTerritory, Chandigarh, stating that Ministry of Environment Forests andClimate Change, in exercise of the powers conferred by Section 3(2)and 3(3) of the E.P. Act read with Rule 5(3) of the E.P. Rules hasnotified an area of 1050 hectares, to an extent varying from 2 km. to2.75 km. from the boundary of Sukhna Wildlife Sanctuary in the UnionTerritory of Chandigarh, for that Notification dated 18.01.2017 has beenissued. The High Court has also relied on the conditions of Notification,which is extracted hereinunder:

“197…….However, after reserving the judgment in the petitions,a short affidavit dated 09.03.2017 came to be filed on behalf ofU.T. Chandigarh in W.P.(C) No.2924/2014 stating that the CentralGovernment, Ministry of Environment, Forests and ClimateChange, in exercise of the powers conferred by Section 3(2) and(3) of the Environment (Protection) Act, 1986 read with Rule5(3) of the Environment (Protection) Rules, 1986 notified an areaof 1050 hectares, to an extent varying from 2.0 kilometers to 2.75kilometers from the boundary of Sukhna Wildlife Sanctuary in theUnion Territory of Chandigarh on the side of Chandigarh as theSukhna Wildlife Sanctuary, Eco-Sensitive Zone vide Notificationdated 18.01.2017. copy of the said Notification has also beenproduced, and Para 4 thereof contains the list of activities prohibitedor to be regulated within Eco-sensitive Zone. “ConstructionActivities” have been included in the said list under Part B-”Regulated Activities.” Rule 4 to the extent, it is relevant for thepresent case may be extracted hereunder:

“4. list of activities prohibited or to be regulated within Eco-SensitiveZone. - All activities in the Eco-sensitive Zone shall be governed

CDEFG

by the provisions of the Environment (Protection) Act, 1986 (29of 1986) and the rules made thereunder and shall be regulated inthe manner specified in the Table below, namely:-

TABLE

A. Prohibited Activities

B. Regulated Activities

12. Construction activities:

No new commercial construction of any kind shall be permitted-within 0.5 kilometre (ZoneI) from the boundary of protected areaor up to the boundary of the Eco-sensitive Zone whichever isnearer:

Provided that, local people shall be permitted to undertakeconstruction in their land for their residential use, including theactivities listed in sub-paragraph (1) of paragraph 3.

(a) Construction of all types of new buildings and houses up to a-distance of 0.5 kilometer i.e., in the zoneI shall be prohibited;from 0.5 kilometre to 1.25 kilometre from the boundary of SukhnaWildlife Sanctuary, construction of low density (ground coverageless than half of the plot size) and low rise building (height up to15 feet) can be allowed if permissible under the prescribed landuse plan of the area; any construction will have to adhere to theDevelopment Regulation applicable to the area and shall beregulated as per the Eco-sensitive Zone management plan; beyond1.25 kilometre construction of new buildings and houses shall beregulated as per existing Chandigarh Administration BuildingBylaws and Architectural Control/Zoning regulation of Unionterritory Administration. Construction of basement in Zone-I ofEco-sensitive Zone shall not be allowed, however, reconstruction/repair of building in Zone-I shall be allowed subject to the restrictionas above i.e. construction of low density (ground coverage lessthan half of the plot size) and low rise building (height upto 15feet).

(b) The construction activity related to small scale industries notcausing pollution shall be regulated and kept at the minimum, withthe prior permission from the competent authority as per theapplicable rules and regulations, if any.

(c) The further construction and augmentation of civic amenitiesshall be regulated as per the Zonal Master Plan.

198. As could be seen from Para 4 of the above Notification, theconstruction activities in the Eco-sensitive Zone apart from beinggoverned by the provisions of the Environment (Protection) Act,1986 and the Rules made thereunder shall be regulated in themanner specified therein. Admittedly, the project in question islocated at distance of 123 meters from Sukhna WildlifeSanctuary. Therefore, the construction of the proposed projectnot only requires the environmental clearance as provided underthe Notification dated 14.09.2006, but it is also subject to theregulations provided under Para 4 of the Notification dated18.01.2017 issued by the Ministry of Environment, Forests andClimate Change.”

(emphasis supplied)

19. The Notification makes it clear that no new commercialconstruction of any kind shall be permitted within 0.5 km. from theboundary of protected area or up to the boundary of the eco-sensitivezone. Construction of all types of new buildings and houses up to adistance of 0.5 km. in the zone-I shall be prohibited from 0.5 km. to 1.2km, construction of low density (ground coverage less than half of theplot size) and low rise building about 15 feet can be permitted.

20. Given the findings above, recorded by the High Court as tothe distance from the Wildlife Sanctuary, we have heard learned counselfor the parties on the issue at length. Whether housing activities arepermissible within short distance of 123 meters from Sukhna WildlifeSanctuary, such project can be permitted to come up.

21. It is not in dispute that proposal, which was sent by theGovernment of Punjab to the MoEF, to keep the Buffer Zone within 100meters from Sukhna Wildlife Sanctuary, had not been accepted and thedirection was issued to resubmit the proposal for at least 1 km BufferZone has not been forwarded by State of Punjab.

22. In Goa Foundation vs. Union of India, (2011) 15 SCC 791,order for the purpose of protection of wildlife sanctuary and eco-sensitivezone has been passed to following effect:

[2019] 13 S.C.R.

“1. The order dated 16-10-2006 refers to Letter dated 27-5-2005, which was addressed by the Ministry of Environment andForests (MoEF) to the Chief Wildlife Wardens of all States/UnionTerritories requiring them to initiate measures for identification ofsuitable areas and submit detailed proposals at the earliest. Theorder passed on that date was that MoEF shall file an affidavitstating whether the proposals received pursuant to the letter of27-5-2005 have been referred to the Standing Committee of theNational Board for Wildlife under the Wildlife (Protection) Act,1972 or not. It was further directed that such of the States/UnionTerritories who have not responded to the letter dated 27-5-2005shall do the needful within four weeks of the communication ofthe directions of this Court by the Ministry to them.

2. It seems that despite the letter dated 27-5-2005 and despite theMinistry having issued reminders and also bringing to the noticeof the States/Union Territories the orders of this Court dated 16-10-2006, the States/Union Territories have not responded.However, we are told that the State of Goa alone has sent theproposal, but that too does not appear to be in full conformity withwhat was sought for in the letter dated 27-5-2005.

3. The order earlier passed on 30-1-2006 refers to the decisionwhich was taken on 21-1-2002 to notify the areas within 10 km ofthe boundaries of national parks and sanctuaries as eco-sensitiveareas. The letter dated 27-5-2005 is departure from the decisionof 21-1-2002. For the present, in this case, we are not consideringthe correctness of this departure. That is being examined in anothercase separately. Be that as it may, it is evident that the States/Union Territories have not given the importance that is requiredto be given to most of the laws to protect environment made afterRio Declaration, 1992.

4. The Ministry is directed to give final opportunity to all States/Union Territories to respond to its letter dated 27-5-2005. TheState of Goa also is permitted to give appropriate proposal inaddition to what is saidto have already been sent to the CentralGovernment. The communication sent to the States/UnionTerritories shall make it clear that if the proposals are not senteven now within period of four weeks of receipt of thecommunication from the Ministry, this Court may have to consider

passing orders for implementation of the decision that was takenon 21-1-2002, namely, Notification of the areas within 10 km of-the boundaries of the sanctuaries and national parks as ecosensitive areas with view to conserve the forest, wildlife andenvironment, and having regard to the precautionary principles. Ifthe States/Union Territories now fail to respond, they would do soat their own risk and peril.

5. The MoEF would also refer to the Standing Committee of theNational Board for Wildlife, under Sections 5-B and 5-C(2) of theWildlife (Protection) Act, the cases where environment clearancehas already been granted where activities are within 10 km zone.

6. List the matter after eight weeks.”

(emphasis supplied)

23. It was incumbent upon the State of Punjab to send proposalto the MoEF, as required but it appears that it has not chosen to do so fora reason precious project concerning the MLAs is involved, and MoEFhas not accepted its proposal for keeping Buffer Zone to 100 meters. Ithas also been pointed out from the respondent side that Naya Gaonforms part of the Greater Mohali Region in the State of Punjab. In thestatutory, Greater Mohali Area Development Authority, Regional Planfor Greater Mohali Region in paragraph 14.3.1, it has been mentionedthat no development is possible within 5 kms buffer distance from existingforest i.e., Sukhna Wildlife Sanctuary. Thus, apart from Shivalik thereare several pockets of forests distributed all over the Greater MohaliRegion. These have to be conserved, and the buffer zone recommendedshould be protected against urban development.

24. It is also clear that 2-2.75 km area has been ordered as eco-sensitive zone by the MoEF and the notification dated 18.1.2017 hasbeen issued as to the adjacent area towards Chandigarh side of theSukhna Wildlife Sanctuary.

25. The most potent threat faced by the earth and humancivilization as whole which is confronted with, today, is environmentaldegradation and wildlife degeneration. The need to protect flora andfauna which constitutes major portion of our ecosystem is immediate.Development and urbanization coming at the cost of adversely affectingour natural surroundings will in turn impact and be the cause of humandevastation as was seen in the 2013 floods in Uttarakhand and in 2018 in

AKerala. The climate change is impacting wildlife by disrupting the timingof natural events. With warmer temperatures, flowering plants areblooming earlier in the year and migratory birds are returning from theirwintering grounds earlier in the spring.* Wildlife conservation in Indiahas long history, dating back to the colonial period when it was rathervery restrictive to only targeted species and that too in definedBgeographical area. Then, the formation of the Wildlife Board at the nationallevel and enactment of Wildlife Act in 1972 laid the foundation of presentday “wildlife conservation” era in post-independent India. Project Tigerin the 1970s and the Project Elephant in 1992–both with flagship species–attracted global attention. India then also became member of all majorCinternational conservation treaties related to habitat, species andenvironment like Ramsar Convention, 1971; Convention on InternationalTrade in Endangered Species of Wild Fauna and Flora, 1973; Conventionon Migratory Species, 1979; Convention on Biological Diversity, 1992,among others.**

D26. The human as well as the wildlife are completely dependentupon environment for their survival. Human is completely dependent onthe environment. Like the human, the wild life is also dependent on theenvironment for it’s survival and also get effected by the environment.The relationship between the human and animal can be understood bythe food-chain and food-web. The wildlife is affected by several reasonsEsuch as population, deforestation, urbanization, high number of industries,chemical effluents, unplanned land-use policies, and reckless use of naturalresources etc.27. The Directive Principles of State Policy provide that protectionand improvement of environment, safeguarding forest and wildlife haveFbeen duly enjoined upon the Government. Those principles have foundstatutory expression in various enactments i.e., Wildlife (Protection) Act,E.P. Act etc., which have been enforced by this Court in various decisions.The inaction of State to constitutional and statutory duties cannot bepermitted. The Court has to issue appropriate directions to fulfil theGmandate. Article 51(A) provides fundamental duty to protect and preserveenvironment, wild life etc.

* Source : https://www.nwf.org/Educational-Resources/Wildlife-Guide/Understanding-Conservation.

** Source : Down to Earth, Wildlife convservation in India : are we really serious ? ArticleHby A.K. Ghosh dated 19.9.2018.

28. Articles 48(A) and 51(A)(g) of the Constitution of India readsas under:

“48A. Protection and improvement of environment andsafeguarding of forests and wild life.- The State shallendeavour to protect and improve the environment and tosafeguard the forests and wild life of the country.

51A. Fundamental duties.- It shall be the duty of every citizenof India-

(g) to protect and improve the natural environment including forests,lakes, rivers and wild life, and to have compassion for livingcreatures;”

29. In Animal and Environment Legal Defence Fund v. Unionof India, (1997) 3 SCC 549, the Court in order to protect wildlife, forest,tiger reserve, fragile ecology, dealt with public trust doctrine thus:

“11. Therefore, while every attempt must be made to preservethe fragile ecology of the forest area, and protect the Tiger Reserve,the right of the tribals formerly living in the area to keep body andsoul together must also receive proper consideration. Undoubtedly,every effort should be made to ensure that the tribals, whenresettled, are in position to earn their livelihood. In the presentcase it would have been far more desirable, had the tribals beenprovided with other suitable fishing areas outside the NationalPark or had been given land for cultivation. Totladoh dam wherefishing is permitted is in the heart of the National Park area. Thereare other parts of the reservoir which extend to the borders of theNational Park. We are not in position to say whether theseoutlying parts of the reservoir are accessible or whether they aresuitable for fishing, in the absence of any material being placedbefore us by the State of Madhya Pradesh or by the petitioner.Some attempts, however, seem to have been made by the Stateof Madhya Pradesh to contain the damage by imposing conditionson these fishing permits. The permissions which have been givenare subject to the following conditions:

(1) The identified families will be given photo identity cards onthe basis of which only fishing and transport will be permitted;

(2) During the rainy season (months: July to October) fishingwill be totally banned;

(3) During the rest of the year, entry will be permitted in thewater from 12 p.m. to 4 p.m. and transport of fish will be allowedbefore sunset;

(4) The photo identity card-holders will not be allowed to enterthe National Park or the islands in the reservoir nor will they beallowed to make night halts;

(5) Transport of fish will be allowed only on Totladoh-ThuepaniRoad from Totladoh reservoir.

15. Since all the claims in respect of the National Park area in theState of Madhya Pradesh as notified under Section 35(1) havebeen taken care of, it is necessary that final notification underSection 35(4) is issued by the State Government as expeditiouslyas possible. In the case of Pradeep Krishen v. Union of India,(1996) 8 SCC 599, this Court had pointed out that the total forestcover in our country is far less than the ideal minimum of 1/3rd ofthe total land. We cannot, therefore, afford any further shrinkagein the forest cover in our country. If one of the reasons for thisshrinkage is the entry of villagers and tribals living in and aroundthe sanctuaries and the National Park there can be no doubt thaturgent steps must be taken to prevent any destruction or damageto the environment, the flora and fauna and wildlife in those areas.The State Government is, therefore, expected to act with senseof urgency in matters enjoined by Article 48-A of the Constitutionkeeping in mind the duty enshrined in Article 51-A(g). We,therefore, direct that the State Government of the State of MadhyaPradesh shall expeditiously issue the final notification under Section35(4) of the Wild Life (Protection) Act, 1972 in respect of thearea of the Pench National Park falling within the State of MadhyaPradesh.”

30. The Doctrine of Public Trust has been considered by thisCourt in M.C. Mehta vs. Kamal Nath and others, (1997) 1 SCC 388.This Court has made the following observations:

“24. The ancient Roman Empire developed legal theory knownas the “Doctrine of the Public Trust.” It was founded on the ideasthat certain common properties such as rivers, seashore, forests

and the air were held by Government in trusteeship for the freeand unimpeded use of the general public. Our contemporaryconcern about “the environment” bear very close conceptualrelationship to this legal doctrine. Under the Roman law theseresources were either owned by no one (res nullious) or by everyone in common (res communious). Under the English commonlaw, however, the Sovereign could own these resources, but theownership was limited in nature, the Crown could not grant theseproperties to private owners if the effect was to interfere with thepublic interests in navigation or fishing. Resources that weresuitable for these uses were deemed to be held in trust by theCrown for the benefit of the public. Joseph L. Sax, Professor ofLaw, University of Michigan — proponent of the Modern PublicTrust Doctrine — in an erudite article “Public Trust Doctrine inNatural Resource Law : Effective Judicial Intervention”,Michigan Law Review, Vol. 68, Part 1 p. 473, has given thehistorical background of the Public Trust Doctrine as under:“The source of modern public trust law is found in conceptthat received much attention in Roman and English law — thenature of property rights in rivers, the sea, and the seashore.That history has been given considerable attention in the legalliterature, need not be repeated in detail here. But two pointsshould be emphasized. First, certain interests, such as navigationand fishing, were sought to be preserved for the benefit of thepublic; accordingly, property used for those purposes wasdistinguished from general public property which the sovereigncould routinely grant to private owners. Second, while it wasunderstood that in certain common properties — such as theseashore, highways, and running water — ‘perpetual use wasdedicated to the public,’ it has never been clear whether thepublic had an enforceable right to prevent infringement of thoseinterests. Although the State apparently did protect public uses,no evidence is available that public rights could be legallyasserted against recalcitrant government.”

25. The Public Trust Doctrine primarily rests on the principle thatcertain resources like air, sea, waters, and the forests have such agreat importance to the people as whole that it would be whollyunjustified to make them subject of private ownership. The saidresources being gift of nature, they should be made freely

available to everyone irrespective of the status in life. The doctrineenjoins upon the Government to protect the resources for theenjoyment of the general public rather than to permit their use forprivate ownership or commercial purposes. According to ProfessorSax, the Public Trust Doctrine imposes the following restrictionson governmental authority:

33. It is no doubt correct that the public trust doctrine under theEnglish common law extended only to certain traditional uses suchas navigation, commerce, and fishing. But the American Courtsin recent cases have expanded the concept of the public trustdoctrine. The observations of the Supreme Court of California inMono Lake case, 33 Cal 3d 419, clearly show the judicial concernin protecting all ecologically important lands, for example,freshwater, wetlands, or riparian forests. The observations of theCourt in Mono Lake case to the effect that the protection ofecological values is among the purposes of public trust may giverise to an argument that the ecology and the environment protectionis relevant factor to determine which lands, waters or airs areprotected by the public trust doctrine. The Courts in United Statesare finally beginning to adopt this reasoning and are expandingthe public trust to encompass new types of lands and waters. InPhillips Petroleum Co. v. Mississippi, 108 SCT 791 (1988), theUnited States Supreme Court upheld Mississippi’s extension ofpublic trust doctrine to lands underlying non-navigable tidal areas.The majority judgment adopted ecological concepts to determinewhich lands can be considered tidelands. Phillips Petroleum caseassumes importance because the Supreme Court expanded thepublic trust doctrine to identify the tidelands not on commercialconsiderations but on ecological concepts. We see no reason whythe public trust doctrine should not be expanded to include allecosystems operating in our natural resources.”

31. In Vellore Citizens’ Welfare Forum v. Union of India, (1996)G5 SCC 647, the Court considered the concept of sustainable developmentthus:

“10. The traditional concept that development and ecology areopposed to each other is no longer acceptable. “SustainableDevelopment” is the answer. In the international sphere,“Sustainable Development” as concept came to be known for

the first time in the Stockholm Declaration of 1972. Thereafter, in1987 the concept was given definite shape by the WorldCommission on Environment and Development in its report called“Our Common Future”. The Commission was chaired by the thenPrime Minister of Norway, Ms G.H. Brundtland and as such thereport is popularly known as “Brundtland Report”. In 1991 theWorld Conservation Union, United Nations EnvironmentProgramme and Worldwide Fund for Nature, jointly came outwith document called “Caring for the Earth” which is strategyfor sustainable living. Finally, came the Earth Summit held in June1992 at Rio which saw the largest gathering of world leadersever in the history — deliberating and chalking out blueprint forthe survival of the planet. Among the tangible achievements ofthe Rio Conference was the signing of two conventions, one onbiological diversity and another on climate change. Theseconventions were signed by 153 nations. The delegates alsoapproved by consensus three non-binding documents namely, aStatement on Forestry Principles, declaration of principles onenvironmental policy and development initiatives and Agenda 21,a programme of action into the next century in areas like poverty,population and pollution. During the two decades from Stockholmto Rio “Sustainable Development” has come to be accepted as aviable concept to eradicate poverty and improve the quality ofhuman life while living within the carrying capacity of the supportingecosystems. “Sustainable Development” as defined by theBrundtland Report means “Development that meets the needs ofthe present without compromising the ability of the futuregenerations to meet their own needs”. We have no hesitation inholding that “Sustainable Development” as balancing conceptbetween ecology and development has been accepted as partof the customary international law though its salient features haveyet to be finalised by the international law jurists.

16. The constitutional and statutory provisions protect person’sright to fresh air, clean water and pollution-free environment, butthe source of the right is the inalienable common law right ofclean environment. It would be useful to quote paragraph fromBlackstone’s commentaries on the Laws of England(Commentaries on the Laws of England of Sir WilliamBlackstone) Vol. III, fourth edition published in 1876. Chapter

XIII, “Of Nuisance” depicts the law on the subject in the followingwords:

“Also, if person keeps his hogs, or other noisome animals,or allows filth to accumulate on his premises, so near the houseof another, that the stench incommodes him and makes the airunwholesome, this is an injurious nuisance, as it tends to deprivehim of the use and benefit of his house. like injury is, if one’sneighbour sets up and exercises any offensive trade; as atanner’s, tallow-chandler’s, or the like; for though these arelawful and necessary trades, yet they should be exercised inremote places; for the rule is, ‘sic utere tuo, ut alienum nonleadas’; this therefore is an actionable nuisance. And on similarprinciple constant ringing of bells in one’s immediateneighbourhood may be nuisance.… With regard to other corporeal hereditaments; it is anuisance to stop or divert water that used to run to another’smeadow or mill; to corrupt or poison watercourse, by erectinga dye-house or lime-pit, for the use of trade, in the upper partof the stream; to pollute pond, from which another is entitledto water his cattle; to obstruct drain; or in short to do any actin common property, that in its consequences must necessarilytend to the prejudice of one’s neighbour. So closely does thelaw of England enforce that excellent rule of gospel-morality,of ‘doing to others, as we would they should do untoourselves’.””

32. In Intellectuals Forum, Tirupathi vs. State of A.P. and others,(2006) 3 SCC 549, principle of sustainable development has beenconsidered by this Court, which reads as under:

“84. The world has reached level of growth in the 21st centuryas never before envisaged. While the crisis of economic growthis still on, the key question which often arises and the courts areasked to adjudicate upon is whether economic growth cansupersede the concern for environmental protection and whethersustainable development which can be achieved only by way ofprotecting the environment and conserving the natural resourcesfor the benefit of humanity and future generations could be ignoredin the garb of economic growth or compelling human necessity.The growth and development process are terms without any

content, without an inkling as to the substance of their end results.This inevitably leads us to the conception of growth anddevelopment, which sustains from one generation to the next inorder to secure “our common future.” In pursuit of development,focus has to be on sustainability of development, and policiestowards that end have to be earnestly formulated and sincerelyobserved. As Prof. Weiss puts it, “conservation, however, alwaystakes back seat in times of economic stress”. It is now anaccepted social principle that all human beings have fundamentalright to healthy environment, commensurate with their well-being, coupled with corresponding duty of ensuring that resourcesare conserved and preserved in such way that present as wellas the future generations are aware of them equally.”

33. In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, the Courtevolved polluter pays principle and observed:

“8. Apart from the above statutes and the rules made thereunder,Article 48-A of the Constitution provides that the State shallendeavour to protect and improve the environment and tosafeguard the forests and wildlife of the country. One of thefundamental duties of every citizen as set out in Article 51-A(g)is to protect and improve the natural environment, including forests,lakes, rivers and wildlife and to have compassion for livingcreatures. These two articles have to be considered in the light ofArticle 21 of the Constitution which provides that no person shallbe deprived of his life and liberty except in accordance with theprocedure established by law. Any disturbance of the basicenvironment elements, namely air, water and soil, which arenecessary for “life”, would be hazardous to “life” within themeaning of Article 21 of the Constitution.

9. In the matter of enforcement of rights under Article 21 of theConstitution, this Court, besides enforcing the provisions of theActs referred to above, has also given effect to fundamental rightsunder Articles 14 and 21 of the Constitution and has held that ifthose rights are violated by disturbing the environment, it can awarddamages not only for the restoration of the ecological balance,but also for the victims who have suffered due to that disturbance.In order to protect “life”, in order to protect “environment” and inorder to protect “air, water and soil” from pollution, this Court,through its various judgments has given effect to the rights available,

to the citizens and persons alike, under Article 21 of theConstitution. The judgment for removal of hazardous and obnoxiousindustries from the residential areas, the directions for closure ofcertain hazardous industries, the directions for closure ofslaughterhouse and its relocation, the various directions issued forthe protection of the Ridge area in Delhi, the directions for settingup effluent treatment plants to the industries located in Delhi, thedirections to tanneries etc., are all judgments which seek to protectthe environment.

10. In the matter of enforcement of fundamental rights underArticle 21, under public law domain, the Court, in exercise of itspowers under Article 32 of the Constitution, has awarded damagesagainst those who have been responsible for disturbing theecological balance either by running the industries or any otheractivity which has the effect of causing pollution in the environment.The Court while awarding damages also enforces the“POLLUTER-PAYS PRINCIPLE” which is widely accepted asa means of paying for the cost of pollution and control. To put inother words, the wrongdoer, the polluter, is under an obligation tomake good the damage caused to the environment.”

34. In M.C. Mehta (Badkhal and Surajkund Lakes matter) vs.Union of India and others, (1997) 3 SCC 715, this Court had observed:

“6. Mr. Shanti Bhushan, learned Senior Advocate, appearing forsome of the builders had vehemently contended that banningconstruction within one km radius from Badkhal and Surajkund isarbitrary. According to him, it is not based on technical reasons.He has referred to the directions issued by the Government ofIndia under the Environment Protection Act and has contendedthat the construction can at the most be banned within 200 to 500metres as was done by the Government of India in the coastalareas. He has also contended that restriction on construction onlyin the areas surrounding Surajkund and Badkhal lakes is hit byArticle 14 of the Constitution of India as it is not being extendedto other lakes in the country. We do not agree with Mr. ShantiBhushan. The functioning of ecosystems and the status ofenvironment cannot be the same in the country. Preventivemeasures have to be taken, keeping in view the carrying capacityof the ecosystems operating in the environmental surroundingsunder consideration. Badkhal and Surajkund lakes are popular

tourist resorts almost next door to the capital city of Delhi. Wehave on record the Inspection Report in respect of these lakes bythe National Environmental Engineering Research Institute(NEERI) dated 20-4-1996, indicating the surroundings, geologicalfeatures, land use, and soil types and archaeological significanceof the areas surrounding the lakes. According to the report,Surajkund lake impounds water from rain and natural springs.Badkhal Lake is an impoundment formed due to the constructionof an earthen dam. The catchment areas of these lakes are shownin figure attached with the report. The land use and soil types,as explained in the report, show that the Badkhal Lake andSurajkund are monsoon-fed water bodies. The natural drainagepattern of the surrounding hill areas feed these water bodies duringrainy season. Large-scale construction in the vicinity of these touristresorts may disturb the rainwater drains, which in turn may badlyaffect the water level as well as the water quality of these waterbodies. It may also cause disturbance to the aquifers which arethe source of ground water. The hydrology of the area may alsobe disturbed.”

35. In Indian Council for Enviro-Legal Action vs. Union ofIndia and others, (1996) 5 SCC 281, this Court has made the followingobservations:

“41. With rapid industrialisation taking place, there is an increasingthreat to the maintenance of the ecological balance. The generalpublic is becoming aware of the need to protect environment.Even though laws have been passed for the protection ofenvironment, the enforcement of the same has been tardy, to saythe least. With the governmental authorities not showing anyconcern with the enforcement of the said Acts, and with thedevelopment taking place for personal gains at the expense ofenvironment and with disregard of the mandatory provisions oflaw, some public-spirited persons have been initiating public interestlitigations. The legal position relating to the exercise of jurisdictionby the courts for preventing environmental degradation and therebyseeking to protect the fundamental rights of the citizens is nowwell settled by various decisions of this Court. The primary effortof the Court, while dealing with the environmental-related issues,is to see that the enforcement agencies, whether it be the State orany other authority, take effective steps for the enforcement of

Athe laws. The courts, in way, act as the guardian of the people’sfundamental rights, but in regard to many technical matters, thecourts may not be fully equipped. Perforce, it has to rely on outsideagencies for reports and recommendations whereupon orders havebeen passed from time to time. Even though it is not the functionof the Court to see the day-to-day enforcement of the law, thatBbeing the function of the Executive, but because of the non-functioning of the enforcement agencies, the courts as of necessityhave had to pass orders directing the enforcement agencies toimplement the law.”

36. In the aforesaid facts and circumstances of the case,Cconsidering the distance of 123 meters from the Northern side and 183meters from the Eastern side of the project in question from wildlifesanctuary, in our opinion, no such project can be allowed to come up inthe area in question. The State of Punjab was required to act on thebasis of Doctrine of Public Trust. It has failed to do so. The origination

Dof the project itself indicates that State of Punjab was not acting infurtherance of Doctrine of Public Trust as 95 MLAs were to be therecipients of the flats. It is clear why Government has not been able toprotect the eco-sensitive zone around Wildlife and has permitted settingup of high-rise buildings up to 92 meters in the area in question, which isnot at all permissible.E

37. Resultantly, we hold that such projects cannot be permitted tocome up within such short distance from the wildlife sanctuary. Moreso,in view of the Notification issued with respect to the Sukhna wildlifesanctuary towards the side of Chandigarh Union Territory and alsoconsidering the fact that proposal made by the Punjab Government,Fconfining the Buffer Zone to 100 meters, has rightly not been acceptedby MoEF, as the Government of Punjab as well as the MoEF, cannot bethe final arbiter in the matter. The Court has to perform its duty in sucha scenario when the authorities have failed to protectthe wildlife sanctuaryeco-sensitive zone. The entire exercise of obtaining clearance relating

to the project is quashed. We regret that such scenario has emergedGin the matter and that it involved large number of MLAs of PunjabLegislative Assembly. The entire exercise smacks of arbitrariness onthe part of Government including functionaries.

Thus, we dismiss the appeals with the directions mentioned above.

HNidhi Jain